The Examiner of the Department of Industry, Labor and Human Relations issued
a decision in the above-captioned matter on October 15, 1980. Complainant
filed a timely petition for review and both parties subsequently filed
written arguments with the Commission.

Based upon a review of the record in its entirety, the Labor and Industry
Review Commission issues the following:

ORDER

That the decision of the Examiner is affirmed by the Commission and shall
stand as the FINAL ORDER herein, subject to the following modification:

The last word of Finding of Fact, paragraph #6, "Delaware," is deleted and
the word "Pennsylvania" is substituted therefor.

Dated and mailed at Madison, Wisconsin July 21, 1982.

/s/ David A. Pearson, Chairman

/s/ Virginia B. Hart, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

The change made by the Commission in Finding of Fact, paragraph #6,
does not affect the result in the case and is made for the purpose of
conforming the findings to the evidence in the case.

The Commission has reviewed the transcripts in this case, as well as
the correspondence between the parties and the Examiner and can find
no basis in fact for the allegations in Complainant's petition for
review that the Examiner was biased and denied the Complainant an
opportunity to be heard on the jurisdictional issue.

The record does reflect that Examiner Borkenhagen became somewhat
testy over Complainant's attorney's repeated questioning of her
rulings on evidentiary motions. The majority of the spats between
Attorney Brostoff and Examiner Borkenhagen occurred over Brostoff's
persistent attempt to question the witnesses regarding the
Complainant's performance over the course of his 14-year career with
the Respondent company. Examiner Borkenhagen sustained repeated
objections by the Respondent's counsel on the basis that the questions
being asked by Brostoff were irrelevant in view of the fact that
Respondent had conceded that the Complainant had performed admirably
up to the time of the alleged incident of cheating. The Commission's
review of the record reveals that Examiner Borkenhagen acted quite
commendably on the whole and certainly did not appear to be motivated
by bias toward the Complainant in her conduct of the hearing.

Brostoff's second allegation, regarding lack of notice and a supposed
ex parte communication by the Respondent to the hearing examiner, is
baseless. Both parties were given the opportunity to brief the
jurisdictional matter. Rather than briefing the issue, Attorney
Brostoff objected to the Examiner's right to raise the jurisdictional
question on her own motion. Brostoff demanded to see a copy of the
brief submitted by the Respondent so that he could reply to it, even
though the Examiner had requested the parties to submit the briefs to
her simultaneously. Attorney Brostoff was even afforded additional
time to submit a brief after he professed confusion as to what was in
issue. Since Brostoff submitted no original brief the Examiner did not
afford him the right to reply to Respondent's brief. Attorney Brostoff
argues to the Commission that this refusal to permit a reply on the
jurisdictional question constituted a denial of due process. The
Commission disagrees. It is worth noting that Attorney Brostoff has
had an opportunity to submit a brief to the Commission discussing the
jurisdictional issue but has not done so, in spite of the fact that
he has been provided with a copy of Respondent's brief to the
Commission on the issue.

As the basis for affirming the Examiner, the Commission reiterates its
opinion that the controlling factor in determining whether the Act applies is
the place where the discrimination took place, in this case Pittsburgh,
Pennsylvania. (See Buyatt v. C. W. Transport (LIRC 7/15/77).

Note: The decision of the
hearing examiner which the commission affirmed in this matter is reproduced in
its entirety below:

STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN
RELATIONS
EQUAL RIGHTS DIVISION

William J. Gray, Jr.
Complainant

vs.

Walker Manufacturing Company
Respondent

DECISION
ERD Case No. 8025006

In a complaint filed with the Equal Rights Division of the
Department of Industry, Labor and Human Relations on September
19, 1976 Complainant alleged that Respondent had discriminated
against him on the basis of age in regard to discharge in
violation of the Wisconsin Fair Employment Act, Sections
111.31-111.37 Wis. Stats. (hereafter "Act"). On March 14, 1978
an Initial Determination was issued finding no probable cause to
believe that such discrimination had occurred. Complainant filed
a request for a hearing on those findings. The matter was heard
on June 8, 1979 by Hearing Examiner Leonard A. Tokus who issued
a decision reversing the no probable cause finding on February
8, 1980. Conciliation was waived and the matter was certified to
a nearing on the merits. Pursuant to notice hearing was held on
July 23, 1980, and August 14 and 15, 1980 before Joyce E.
Borkenhagen, a duly authorized Hearing Examiner for the
Department. Complainant appeared in person and by Attorney Alan
S. Brostoff, 700 North Water Street, Milwaukee, Wisconsin 5320.
Respondent appeared by Attorney Jeffrey L. Madoff and Attorney
William J. Sullivan, Seyfarth, Shaw, Fairweather b Geraldson, 55
East Monroe Street, Chicago, Illinois 60603.

During the course of the nearing a question of the Department's
jurisdiction to proceed in the matter arose and both parties
were asked to submit their comments on the issue. Only the
Respondent chose to respond.

Based upon the entire factual record, the Hearing Examiner makes
the following:

FINDINGS OF FACT

1. Respondent, Walker Manufacturing Company, is a company with
offices located throughout the United States. Its home office is
in Racine, Wisconsin.

2. Complainant, William J. Gray, Jr., is a resident of
Pittsburgh, Pennsylvania.

3. Complainant was employed by Respondent for 14 years as a
Territorial Manager.

4. During the entire term of employment Complainant was
associated with Respondent's Philadelphia and Delaware
facilities.

5. Respondent's stated reason for terminating Complainant
related to Complainant's handling of refunds of one of
Respondent's Pittsburgh, Pennsylvania customers.

6. The termination papers for Complainant's discharge were
initiated from Respondent's office in Wilmington, Delaware.
Complainant was informed of his termination in Delaware.

7. At all times relevant to the complaint both Pennsylvania and
Delaware had in effect Fair Employment Statutes.

8. The alleged discrimination did not occur in Wisconsin.

CONCLUSIONS OF LAW

Complainant has failed to show sufficient nexus to the State of
Wisconsin, to invoke the jurisdiction of the Department of
Industry, Labor and Human Relations for actions that occurred in
the States of Pennsylvania and Delaware. There is no evidence
that Complainant either worked in Wisconsin or lived in
Wisconsin at any time material to the complaint.